Clarke (Naicker) v Health Care Complaints Commission

1. [1]

   HER HONOUR: Since 2008, the plaintiff, Sharmain Daisy Clarke (formerly Naicker), has been a regular litigant in various state and federal jurisdictions. On my count, there are something like 45 public judgments dealing with claims initiated by or connected with Ms Clarke. [1] All of them have at their heart the question of the continuation of Ms Clarke’s occupation as a Registered Nurse.

2. [2]

   This most recent claim was filed by her on 26 May 2023. It named the Health Care Complaints Commission (“the HCCC”) as first defendant and the New South Wales Civil and Administrative Tribunal (“NCAT” or “the Tribunal”) as second defendant to a claim seeking judicial review of orders made by NCAT on 17 November 2022, in part cancelling the plaintiff’s registration as a nurse: Health Care Complaints Commission v Clarke [2022] NSWCATOD 146 (“the NCAT decision”). Ms Clarke seeks judicial review of the decision of the NCAT from November 2022.

3. [3]

   By Notice of Motion filed on 24 July 2023, the HCCC moves the Court for orders summarily dismissing the plaintiff’s claim or staying it permanently. The HCCC argues that the plaintiff’s claim seeks to re-agitate matters already raised before the Court of Appeal, and that it has no prospects of success.

The Evidence

1. [4]

   The HCCC read two affidavits from solicitor Lucinda Cannon, affirmed on 24 July 2023 and 6 December 2023 respectively. Ms Cannon’s evidence largely collates and summarises matters which form part of the public record, [2] being a history of litigation related to Ms Clarke’s employment. The following is drawn from the evidence, and the Court’s file.

2. [5]

   Ms Clarke’s employment in Australia as a registered nurse (having previously studied in that field in her native South Africa) commenced in 2003. She was employed as a peri-operative nurse at the Prince of Wales Hospital from that year until 2008, when she was dismissed. Proceedings citing unfair dismissal were commenced in the Industrial Relations Commission under s 84 of the Industrial Relations Act 1996 (NSW). The proceedings were dismissed on or about 13 October 2008: Sharmain Naicker and NSW Health Service - Government of New South Wales for South Eastern Sydney Illawarra Area Health Service [2008] NSWIRComm 1104.

3. [6]

   Ms Clarke was employed as a nurse by the Royal Hospital for Women in Randwick on 17 November 2011. The plaintiff initiated a dispute with the Hospital under the Industrial Relations Act in 2014, but the action was discontinued. On 5 May 2015 the plaintiff’s employment was terminated. Considerable litigation followed. The plaintiff sought to challenge her termination in the Fair Work Commission, but she was refused an extension of time in which to do so: Naicker v South Eastern Sydney Local Health District t/as Royal Hospital for Women [2016] FWC 5697.

4. [7]

   In September 2015, proceedings were brought by the Nursing and Midwifery Council (“the NMC”) under s 150 of the Health Practitioner Regulation National Law (“the National Law”) following a complaint against Ms Clarke made by the South-Eastern Sydney Local Health District. Conditions were placed upon Ms Clarke’s registration following a decision of the NMC in November 2015.

5. [8]

   Among the conditions were requirements for the plaintiff to undertake a performance assessment and to attend for a heath assessment. The plaintiff withdrew from a performance assessment and failed to attend four appointments for a health assessment scheduled in the first half of 2017. In July 2017, the NMC imposed a further restriction on the plaintiff’s registration, preventing her from working as a nurse and requiring her to be medically assessed. Thereafter the plaintiff launched action before the NCAT, seeking leave to proceed with a disability discrimination complaint, and a review of the decision of the NMC. Both claims were dismissed in 2017: see Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81 and Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 respectively.

6. [9]

   Ms Clarke sought to challenge the decision of NCAT’s Administrative Division in the Supreme Court, but her claim was summarily dismissed as failing to disclose a reasonable cause of action: Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357. A costs order was subsequently made against the plaintiff: Clarke v South East Sydney Local Health District (No 2) [2018] NSWSC 357.

7. [10]

   Ms Clarke sought leave to appeal against the dismissal of her claim by the Supreme Court, and a limited grant of leave was made by the Court of Appeal permitting the plaintiff to advance one ground from her draft notice of appeal: Sharmain Daisy Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226. When the matter was reconsidered by the Supreme Court it was again dismissed summarily: Clarke v South Eastern Sydney Local Health District (No 3) [2019] NSWSC 1075. An application for leave to appeal against that decision was dismissed by the Court of Appeal: Clarke v South Eastern Sydney Local Health District [2020] NSWCA 8, and the High Court refused special leave on 11 February 2020: Clarke v South Eastern Sydney Local Health District [2020] HCASL 135.

8. [11]

   Parallel claims were made by the plaintiff in the Federal Circuit Court in which she sought damages from the NMC and others, but the claims were unsuccessful: Clarke v Nursing and Midwifery Council of New South Wales & Ors [2019] FCCA 2127; Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 2) [2019] FCCA 3035; Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 3) [2019] FCCA 3159; Clarke v Nursing and Midwifery Council of New South Wales & Ors (No 4) [2019] FCCA 3639; Clarke v South Eastern Sydney Local Health District & Ors [2019] FCCA 3769. Action was also taken by Ms Clarke, with no good outcome for her, in the Federal Court of Australia: Clarke v Nursing and Midwifery Council New South Wales [2019] FCA 1782; Clarke v South Eastern Sydney Local Health District [2020] FCA 1616; Clarke v Nursing and Midwifery Council of New South Wales [2020] FCA 1617. [3]

9. [12]

   Ms Clarke brought a number of related claims in the District Court in this period, among them for defamation and professional negligence, but none were successful: Clarke (previously Naicker) v Nerrick [2017] NSWDC 302; Clarke v Fenn [2018] NSWDC 336; Clarke v Nursing and Midwifery Council of New South Wales (No 2) [2019] NSWDC 531; Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532; Clarke v Herrick [2019] NSWDC 533; Clarke and Midwifery Council New South Wales (No 4) [2019] NSWDC 659; Clarke v Dale; Clarke v Herrick (NSW District Court, 8 October 2020, unrep); Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWDC 641. Applications for leave to appeal with respect to some of these multiple actions were separately dismissed: Clarke v Herrick [2020] NSWCA 71; Clarke v Herrick [2021] NSWCA 102.

10. [13]

    Amongst all this litigation, Ms Clarke was taken ill in November 2019 and admitted to Royal North Shore Hospital on 28 November 2019 as an involuntary patient under the Mental Health Act 2007 (NSW). She remained hospitalised until 16 December 2019. Earlier, as part of her dispute concerning her registration, Ms Clarke had been assessed by Dr Anthony Samuels, psychiatrist, in March 2018; and in June 2019 an Impaired Registrants Panel found that the plaintiff had a health condition that detrimentally affected her capacity to safely practice as a nurse. On 24 March 2020, an Impaired Registrants Panel determined that Ms Clarke would remain a risk to the public were she to practice.

11. [14]

    In 2020, the plaintiff brought further claims before NCAT relating to her employment, but each was dismissed: Clarke v Midwifery Council of New South Wales [2020] NSWCATOD 58; Clarke v Nursing and Midwifery Council of New South Wales [2021] NSWCATOD 32.

12. [15]

    This tsunami of litigation resulted in a decision in this Court in 2021 in which Ms Clarke was declared a vexatious litigant and restrained from instituting further proceedings in NSW against the South Eastern Local Health District, the Nursing and Midwifery Council of New South Wales and the Health Professional Councils Authority, or on the subject matter of previous proceedings in the NCAT, Local, District, Supreme, Federal Circuit and Federal Courts: South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63. In making orders, Schmidt AJ concluded, at [137] – [139]:

13. [16]

    A number of subsequent applications to the Court by Ms Clarke for leave to institute proceedings were refused: Clarke v Adams [2021] NSWSC 1665; Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15; Clarke v New South Wales Nurses and Midwives Association (The Union) [2022] NSWSC 349. Similar orders were made in the federal jurisdiction prohibiting Ms Clarke from initiating certain litigation: Clarke v Health Care Complaints Commission [2023] FedCFamC2G 916.

14. [17]

    It was against that background of failure to comply with conditions upon her registration and much doomed litigation, that the impugned NCAT decision was made on 17 November 2022 cancelling the plaintiff’s registration for a 3 year period. Ms Clarke filed the application that the HCCC asks the Court by its Notice of Motion to dismiss, in which she seeks judicial review of that decision, on 26 May 2023. She also filed an application for leave to appeal the NCAT decision, and an appeal, to the Court of Appeal. That appeal was heard on 23 November 2023, with the decision of the Court reserved as at the date of the hearing of the HCCC’s Motion before this Court. It is in part by reference to that appeal that the HCCC contends these proceedings should be dismissed as an abuse of process, in that they substantially reagitate the questions upon which, at the date of hearing, the Court of Appeal was reserved. The other basis advanced by the HCCC as warranting the dismissal of Ms Clarke’s Summons pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) is that the claim is frivolous and vexatious, and discloses no reasonable cause of action.

15. [18]

    Following the date of the hearing, whilst this Court was reserved, the Court of Appeal made orders and published its reasons with respect to the plaintiff’s appeal: Sharmain Daisy Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15 (“the appeal decision”). An earlier application made by Ms Clarke for a member of the bench to recuse himself and for an adjournment was refused: Sharmain Daisy Clarke v Health Care Complaints Commission (Recusal Application) [2024] NSWCA 16. The appeal and application were both dismissed, with costs, by the Court of Appeal.

16. [19]

    The proceedings before NCAT were commenced by the HCCC, seeking disciplinary findings and orders with respect to the plaintiff, on the basis that she had an impairment pursuant to s 144(d) of the National Law, and lacked sufficient capacity to practice as a nurse, as envisaged by s 139(a) of the National Law.

17. [20]

    It is not necessary for the purposes of determining the HCCC’s Motion to consider the evidence before NCAT, or the reasons given by it for the orders that were made. Suffice to say that NCAT concluded that Ms Clarke suffered from a bi-polar disorder, with psychotic and paranoid personality features, and was not competent to practice as a nurse by virtue of that impairment to her mental health.

The Court of Appeal Proceedings

1. [21]

   Although the plaintiff’s application and appeal had not been determined by the Court of Appeal when this matter was before me for hearing, orders have now been made by the Court, dismissing both proceedings, with costs.

2. [22]

   Ms Clarke did not attend the hearing before the Court of Appeal. She sent an email raising various matters including an application for an adjournment. The adjournment application was refused and the hearing proceeded in her absence.

3. [23]

   Although the Court of Appeal found it difficult to identify the grounds or proposed grounds of appeal, it was concluded that, by her summons and written submissions, Ms Clarke raised the following complaints for consideration before the Court of Appeal:

   1. (1)

      the proceedings before NCAT were vexatious and should have been summarily dismissed;

   2. (2)

      the proceedings were vitiated by harassment, intimidatory behaviour, dishonesty, and impropriety on the part of the regulatory authorities (the NMC and the HCCC);

   3. (3)

      Ms Clarke was denied procedural fairness before NCAT;

   4. (4)

      the medical evidence received by NCAT and relied upon it to make the relevant orders was inadmissible;

   5. (5)

      the orders of the Tribunal were ultra vires in that there was no power to cancel her registration for a period of 3 years without provision for review, and no power to prevent her from providing health services;

   6. (6)

      there was irregularity in the filing of relevant documentation by the HCCC;

   7. (7)

      the complaint made by the NMC was made for an improper purpose, that being to frustrate financial claims Ms Clarke had against it;

   8. (8)

      there was no current evidence that Ms Clarke ever suffered or was suffering any mental incapacity and the medical reports relied upon by the HCCC or by the NMC contained inaccurate and false information on this subject;

   9. (9)

      Ms Clarke was not examined by the HCCC and the NMC did not provide its complaint to her prior to making the complaint to the HCCC, denying her the opportunity to respond;

   10. (10)

       she was not obliged by the National Law to attend upon any doctor engaged by the HCCC, and, in any event, correspondence from the HCCC was coercive, oppressive and harassing and any health assessment conducted for the HCCC would have been false and illegal and not independent;

   11. (11)

       the assessments conducted by Dr Samuels were unreliable and there was no basis for her to have taken the medication (Seroquel) prescribed to her by another doctor, Dr Toohey; and

   12. (12)

       NCAT made errors of fact.

4. [24]

   Each of these complaints was considered by the Court of Appeal and rejected as without foundation.

The Plaintiff’s Claim to this Court

1. [25]

   Although the Summons filed by the plaintiff on 26 May 2023 is described on its face as “Judicial Review Proceedings” the orders sought only tangentially bear that character. Ms Clarke asks the Court to make the following orders:

2. [26]

   In seeking these orders, the plaintiff advances 4, rather imprecise, grounds as follows:

3. [27]

   Ms Clarke relies upon a Summary of Argument filed on 26 May 2023. In legal terms it is an unconventional document that is somewhat difficult to understand. It is prolix and discursive, mingling legal terminology, generally inaptly applied, with what impress as persecutory delusions. The disordered nature of the document can be seen from a few short extracts:

4. [28]

   Much of the Summary of Argument focuses on the plaintiff’s assertion that any medical opinion expressed in evidence before NCAT to the effect that she suffered from a mental health impairment should not have been admitted, and was false, misleading, and prejudicial. By way of summary, and doing the best I can, I understand the plaintiff’s concerns as distilled from her Summary of Argument to relate to the following matters:

   1. (1)

      The HCCC engaged in prejudicial and illegal conduct to prevent Ms Clarke from practicing her profession, denying her natural justice;

   2. (2)

      The evidence before NCAT was inadmissible and there was no admissible evidence to establish that the plaintiff had an impairment to her mental health;

   3. (3)

      NCAT had no power to cancel Ms Clarke’s registration for a three year period without specifying a review, and no power to prohibit her from providing health services;

   4. (4)

      There were errors of law in the decision of NCAT in its application of the National Law and the Health Care Complaints Act 1993 (NSW);

   5. (5)

      The decision of NCAT reflects errors of fact;

   6. (6)

      Submissions and a chronology placed before NCAT by the HCCC were inaccurate and misleading; and

   7. (7)

      The decision made by NCAT reflects its bias against Ms Clarke.

The Application of the HCCC

1. [29]

   The HCCC contends that Ms Clarke’s claim to this Court substantially replicates the matters raised before the Court of Appeal in proceedings 2022/356036 and 2023/40167. In particular, the claim raises assertions of errors of law, errors of fact, error in the orders made by NCAT, and failure to afford natural justice. The HCCC submits that reagitating the same issues or seeking the same relief in two forums is an abuse of process.

2. [30]

   Further, it is argued that the plaintiff’s claim has no prospects of success. Her assertion as to the absence of any admissible evidence as to an impairment suffered by her is devoid of merit, and plainly false.

3. [31]

   Ms Clarke detailed what she said was malfeasance in the proceedings before NCAT at some length, and in a manner that was not always easy to follow, but my understanding of her submission on the question of summary dismissal was that her appeal to the Court of Appeal raised different questions to those raised before this Court; that the Court of Appeal could not deliver a judgment in any event as she did not attend the hearing before the court; and that she had been subjected to unconscionable conduct that had unjustly deprived her of her capacity to earn an income, and the Court could not justly stop her from pursuing her claim.

Determination

1. [32]

   There is no doubt that Ms Clarke’s present claim to the Court substantially reproduces the arguments and claims she has made before the Court of Appeal. The issues are almost identical, as a comparison between the list of issues raised in the two proceedings, summarised above, demonstrates. Each of these matters have been determined by the Court of Appeal in its judgment of 7 February 2024. To permit Ms Clarke’s claim to proceed would be to permit an abuse of process by the re-agitation of substantially the same claim.

2. [33]

   Rule 13.4 of the UCPR provides for the dismissal of proceedings without full hearing in certain circumstances:

3. [34]

   The consequences of that power being exercised is to deny the litigant the determination of his or her claim without the benefit of a full hearing of the issues before a court, and as such, it is to be used only with considerable care. In Agar v Hyde (2000) 201 CLR 552, the High Court said, at [57]:

4. [35]

   The point is one of long standing. Dixon J, in Dey v Victorian Railways Commissioners (1949) 78 CLR 62, referring to a 1908 decision of the High Court observed, at 91:

5. [36]

   Bearing firmly in mind the significance of exercising the power to prevent a litigant from the determination of his or her claim, Ms Clarke’s claim is one that she has already made by her appeal and application to the Court of Appeal, as the judgment of the court clearly demonstrates. The court was asked to consider precisely the same issues as are advanced in these proceedings, and determined each matter, adversely to Ms Clarke. To permit her to re-litigate substantially the same issues would be to allow the Court’s processes to be abused, and to submit the defendant to that same impropriety.

6. [37]

   It is clear from the material before the Court that Ms Clarke has become fixated upon the legal process as a means of redressing what she believes to be a significant injustice. The many rejections there have now been of her complaints concerning the cancellation of her registration to practice as a nurse and associated claims have left her undeterred, and she continues to endeavour to resort to the courts to argue what is essentially the same case, again and again. Her inability to accept the judgments of multiple courts, and her determined pursuit of her complaints regardless of those many judgments is, of itself, some confirmation of the opinions of Dr Samuels and others that so outrages Ms Clarke, as to her mental illness.

7. [38]

   I do not doubt that her beliefs that she has been unjustly treated by the regulatory authorities, NCAT and the legal system, are genuinely held, but they appear to be beliefs formed and maintained when in the grip of mental illness. These many legal claims appear to have become a manifestation of that illness. The present claim cannot be allowed to proceed in circumstances where the Court of Appeal has already determined its substance.

8. [39]

   Although the HCCC also argued that the plaintiff’s claim has no prospect of succeeding, it is not necessary to determine that contention (although I observe in passing that that is my strong impression). The claim should be dismissed as an abuse of process.

Orders

1. [40]

   For those reasons, the Court makes the following orders:

   1. (1)

      Pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rule 2005, proceedings bearing the case number 2023/168284 are dismissed with costs.